The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.
Thus declared my colleague, Lord Hoffmann, in a now famous (or infamous) passage from the House of Lords' decision in A v Secretary of State for the Home Department (1) (usually known as the Belmarsh case, after the maximum security prison in which suspected terrorists were held under powers of executive detention enacted very shortly after the atrocities of 9/11). To some, his words deserve to rank alongside other great pronouncements of the common law judiciary, such as Lord Atkin's invocation of Humpty Dumpty in Liversidge v Anderson. (2) To others, his appeal to the continuity of British life and British institutions since the days of the Spanish Armada and the Glorious Revolution of 1688 was "an unfortunate outburst of Anglo-Saxon parochialism" (3) (perhaps an odd accusation to level against a Jewish judge of South African origin).
I do not want to indulge in Anglo-Saxon parochialism. Rather, I want to follow up the theme of another great South African,' Chief Justice Arthur Chaskalson, first President of the Constitutional Court of South Africa. In a recent lecture, (4) he contrasted the messages sent to the rest of the world by the counter-terrorism measures adopted by the Government of the United States of America and by the Committee of Ministers of the Council of Europe in their Guidelines on Human Rights and the Fight against Terrorism:
The temptation of governments and parliaments in countries
suffering from terrorist action is to fight fire with fire, setting
aside the legal safeguards that exist in a democratic state. But
let us be clear about this: while the State has the right to employ
to the full its arsenal of legal weapons to repress and prevent
terrorist activities, it may not use indiscriminate measures which
could only undermine the fundamental values they seek to protect. (5)
Indiscriminate measures are what terrorists use to get their message across. Justice Chaskalson was particularly concerned about the scope of the powers vested in the President of the United States, sanctioning detention without trial, holding detainees incommunicado for long periods of time, secret prisons, ousting the jurisdiction of the courts, trying detainees before military tribunals, and the allegations of kidnapping and extra-ordinary rendition to places where torture might be used. He clearly hoped, from his experience of how quickly cherished legal standards were abandoned in apartheid South Africa, that the rest of the world would heed the European rather than the American messages.
We in the United Kingdom may be more ambivalent. A prominent Israeli politician once said of the State of Israel, "We have our feet in the middle east but our heads in western Europe". (6) In the UK, we have our feet in western Europe but our heads in the common law legal tradition which we share with most of the Anglo-phone world, including the United States. So it saddens us when powerful jurists such as Justice Scalia make clear their contempt for our European ways:
The Court's special reliance on the laws of the United Kingdom is
perhaps the most indefensible part of its opinion.... the Court
undertakes the majestic task of determining (and thereby
prescribing) our Nation's current standards of decency. It is
beyond comprehension why we should look, for that purpose, to a
country that has developed, in the centuries since the
Revolutionary War--and with increasing speed since the United
Kingdom's recent submission to the jurisprudence of European courts
dominated by continental jurists--a legal, political, and social
culture quite different from our own. (7)
I beg to differ. I do not think that our legal, political and social culture is so different from yours that we should ignore developments in one another's legal thinking. …